DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF PRISONS, FEDERAL MEDICAL CENTER, ROCHESTER, MINNESOTA and LOCAL 3947, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

ARBITRATOR’S OPINION AND DECISION

The Department of Justice, Federal Bureau of Prisons, Federal Medical Center,[1]/ Rochester, Minnesota (Employer) and Local 3947, American Federation of Government Employees, AFL-CIO (Union), filed a joint request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119.

After an investigation of the request for assistance, which arises from mid-term bargaining over fingernail policy, the Panel directed the parties to mediation-arbitration with the writer. The writer conducted a joint preliminary conference call with the parties on March 18, 2010, and a mediation-arbitration proceeding by telephone on March 26, 2010. The Employer was represented by Associate Warden/Chief LMR Scott Young and Ms. Dawn Hellickson, Employee Services Manager and official agency contact in this case. Mr. Michael Squibb, Chief Negotiator for Local 3947, represented the Union.

The mission of the Federal Medical Center (FMC) is to provide medical, dental and mental health services to inmates. At capacity, it has about 510 employees, some 350 of which are in the bargaining unit represented by the Union. The Union represents a combination of professional and non-professional, Wage Grade and General Schedule employees. The parties are covered by a collective bargaining agreement (CBA) that was executed in 1998 and expired on March 8, 2001. They are living under the terms and conditions of the old CBA and a Local Supplemental Agreement that runs concurrently with it until bargaining is completed on the new national agreement.

The parties’ joint request for assistance was filed on December 9, 2009. The Employer proposes to ban all Health Care Workers (HCWs) from wearing artificial nails; extenders to natural nails or having fingernails more than ¼ inch in length. Originally proposed on November 14, 2008, the Employer’s “Change in Working Conditions,” notified the Union that the Joint Commission on the Accreditation of Healthcare Organizations (JC) was mandating that

our institution become compliant with several standards such as 1C.4.10 and NPSG (National Patient Safety Goals) 7A, which do not allow artificial nails or extenders when in direct contact with high risk patients. JC has deemed FMC Rochester to have a high risk population.

Not believing the change to be substantively negotiable, the Employer offered the Union the opportunity to bargain over the “I&I of the changes prior to implementation.” Bargaining was postponed for almost a year because of transitions in Executive Staff. Finally, on October 21, 2009, the parties agreed upon ground rules for their negotiations. They exchanged their first and only proposals on November 9, and they conducted their first and only face-to-face negotiations for not more than 2 hours on November 24, 2009. Though they jointly attempted to bypass FMCS, the parties – with guidance from the Panel - agreed to go to mediation and did so, in a 1-hour session on January 25, 2010.[2]/

Things did not improve before the Panel. No changes in their original proposals were made by either side in dealings with the Panel. Oddly, the Medical Center made a special point of telling the Panel this issue was a matter of “life and death.” If only the parties’ behavior had reflected such gravity this matter may have been resolved long ago.

Historically, all HCWs at the FMC were allowed to wear nails of any length, artificial nails and extenders. No problems were reported. It appears from the file that the trigger for the proposed change was an accreditation review, as reflected in a January 23, 2009, e-mail to Warden Arriola and other management officials. The Employer then notified the Union that it was intent on changing the fingernail policy.

The November 14, 2008, Notice cites 1C.4.10 and NPSG 7A as its authority for stopping the practice of wearing artificial nails and extenders. Goal 7 A says that Bureau of Prisons hospitals must comply with either “current World Health Organization (WHO) or Centers for Disease Control and Prevention (CDC) hand hygiene guidelines.” A note is added saying that “Organizations are required to comply with 1A, 1B and 1C of the WHO or CDC guidelines.”

It is clear the literature confirms that fingernails, including artificial nails, are efficient disease carriers if not properly trimmed. Nail extensions exacerbate the problem. I can find nothing that suggests gloves over extenders solves the problem, or even if it is possible to do so. The medical information infers that un-gloved hands are never safe and simply does not address whether nail length can be mitigated by gloving.

The Medical Center recognized that only employees dealing with “high risk” patients were subject to the new procedures, but it opted to designate all patients as “high risk.” I am of the view that this designation is too broad, but there is insufficient evidence to narrow the covered class.